N.D. Cent. Code § 12.1-27.1-01 Obscenity - Definitions - Dissemination - Classification of offenses
12.1-27.1-01. Obscenity - Definitions - Dissemination - Classification of offenses
1. A person is guilty of a class C felony if, knowing of its character, the person
disseminates obscene material or if the person produces, transports, or sends
obscene material with intent that it be disseminated.
2. A person is guilty of a class C felony if the person presents or directs an obscene
performance for pecuniary gain or participates in any portion of a performance which
contributes to the obscenity of the performance as a whole.
3. A person is guilty of a class C felony if the person, as owner or manager of an
establishment licensed under section 5-02-01, permits an obscene performance in the
establishment. A person is guilty of a class C felony if that person participates, whether
or not for compensation, in an obscene performance in an establishment licensed
under section 5-02-01.
4. a. In addition to the penalty provided in subsection 1, 2, or 3, any person who
violates subsection 1, 2, or 3 in the course of a commercial or for-profit activity or
transaction in which the offender had or shared ownership, control, managerial
responsibility, or a financial interest other than wages is subject to the following
penalty:
(1) For an individual, a fine not to exceed ten thousand dollars; or
(2) For a corporation, limited liability company, association, partnership, or other
legal entity, a fine not to exceed twenty-five thousand dollars.
b. In addition to the penalty provided in subsection 1, 2, or 3, the court shall impose
the following penalty upon the conviction of a person or entity described in
subdivision a for a second or subsequent offense under subsection 1, 2, or 3:
(1) For an individual, a fine not to exceed fifty thousand dollars; or
(2) For a corporation, limited liability company, association, partnership, or other
legal entity, a fine not to exceed one hundred thousand dollars.
5. As used in this chapter, the terms "obscene material" and "obscene performance"
mean material or a performance which:
a. Taken as a whole, the average person, applying contemporary North Dakota
standards, would find predominantly appeals to a prurient interest;
b. Depicts or describes in a patently offensive manner sexual conduct, whether
normal or perverted; and
c. Taken as a whole, the reasonable person would find lacking in serious literary,
artistic, political, or scientific value.
Whether material or a performance is obscene must be judged with reference to
ordinary adults, unless it appears from the character of the material or the
circumstances of its dissemination that the material or performance is designed for
minors or other specially susceptible audience, in which case the material or
performance must be judged with reference to that type of audience.
6. As used in this chapter, "disseminate" means to sell, lease, rent, advertise, broadcast,
transmit, exhibit, or distribute for pecuniary gain. "Disseminate" includes any
transmission of visual material shown on a cable television system, whether or not
accompanied by a soundtrack, and any sound recording played on a cable television
system.
7. As used in this chapter, the term "material" means any physical object, including, but
not limited to, any type of book, sound recording, film, or picture used as a means of
presenting or communicating information, knowledge, sensation, image, or emotion to
or through a human being's receptive senses.
8. As used in this chapter, the term "patently offensive" means so offensive on its face as
to affront the contemporary North Dakota standards of decency.
9. As used in this chapter, the term "performance" means any play, dance, or other
exhibition presented before an audience.
10. As used in this chapter, the term "prurient interest" means a voyeuristic, lascivious,
degrading, shameful, or morbid interest in nudity, sex, or excretion that goes
substantially beyond customary limits of candor in description or representation of
those matters.
11. As used in this chapter, the term "sexual conduct" means actual or simulated:
a. Sexual intercourse;
b. Sodomy;
c. Sexual bestiality;
d. Masturbation;
e. Sadomasochistic abuse;
f. Excretion; or
g. Lewd exhibition of the male or female genitals.
As used in this subsection, the term "sodomy" means contact between the penis and
the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the
anus. As used in this subsection, the term "sadomasochistic abuse" means a depiction
or description of flagellation or torture by or upon a person who is nude or clad in
undergarments or in a bizarre or revealing costume; or the condition of being fettered,
bound, or otherwise physically restrained on the part of one so clothed.
12. As used in this chapter, the term "book" means any book, magazine, pamphlet,
newspaper, or other article made out of paper and containing printed, typewritten, or
handwritten words.
13. As used in this chapter, "sexually expressive image" means a real, altered, or
computer-generated photograph or visual representation that exhibits a nude or
partially denuded human figure, as defined in section 12.1-27.1-03.1, or sexual
conduct.